1 Populist Constitutionalism

Populist Constitutionalism: A Contradiction in Terms? Jan-Werner Müller1 (Very rough draft; for NYU Colloquium purposes only; please do not cite or circulate) Populism has proven a notoriously difficult concept to define. Despite the great divergence of approaches to capture this political phenomenon, it is striking that many observers converge on one point: namely that, whatever else it is, populism is inherently hostile to mechanisms and, ultimately, values, commonly associated with constitutionalism: constraints on the will of the majority, checks and balances, protections for minorities or, for that matter, fundamental rights 1 This piece draws on my articles ’”The People Must be Extracted from Within the People”: Reflections on Populism’, in: Constellations, vol. 21 (2014), 483-93, and ‘Towards a Political Theory of Populism’, in: Notizie di Politeia, no. 107 (2012). 1 as such.2 Populists are supposedly impatient with procedures and pre-structured political time; they are even said to be against ‘institutions’ as such, preferring a direct, unmediated relationship between the personal leader and the people. Related to this supposed anti-institutionalism is the charge that populists dislike ‘representation’ and opt for ‘direct democracy’ (as exemplified by referenda) instead. Hence also the impression – widespread both among political philosophers and social scientists – that populism, despite some serious flaws, might under some circumstances act as a ‘corrective’ to a liberal democracy which has become too remote ‘from the people’.3 Or, in conceptually more sophisticated language: there is at least a tension between liberalism and democracy and populism might somehow help the democratic side. The tone of the previous paragraph might have given the (normative) game away already: I regard many of the claims made about (and, to some extent, for) populism skeptically. To the extent that there is a meaningful debate about populism and constitutionalism, it suffers from several unfortunate characteristics: first, the discussion becomes conflated with the normative controversy about the merits of majoritarianism (and, conversely, judicial review); second, there is no clear, or even just discernible, distinction between popular constitutionalism on the one hand, and populist constitutionalism, on the other4; and, third and most important: ‘populism’ becomes a vague placeholder for ‘civic participation’ or ‘social mobilization’ (and, conversely, 2 An illuminating exception is Cristóbal Rovira Kaltwaser, Populism vs. Constitutionalism? FLJS Policy Brief, available at: http://www.fljs.org/sites/www.fljs.org/files/publications/Kaltwasser.pdf (last accessed 16 June 2015). 3 See for instance Cas Mudde and Cristóbal Rovira Kaltwasser (eds.), Populism in Europe and the Americas: Threat or Corrective for Democracy? (New York: Cambridge UP, 2013). 4 For this critique, see also: Corey Brettschneider, ‘Popular Constitutionalism contra populism’, in: Constitutional Commentary (2015). The main reference point for debates about popular constitutionalism in the US remains Larry Kramer, The People Themselves (New York: Oxford Up, 2004); for the beginnings of a German discussion, see Ulrich Haltern, Verfassungsgerichtsbarkeit, Demokratie und Mißtrauen: das Bundesverfassungsgericht in einer Verfassungstheorie zwichen Populismus und Progressivismus (Berlin: Duncker & Humblot, 1998). 2 weakening of the power of judges and other elites).5 Quite apart from the vagueness of the concepts used (or perhaps related to this vagueness), there’s the fact that debates about populism and constitutionalism – especially in the US – quickly turn emotional: accusations of elitism and ‘demophobia’ start to fly, theorists are suspected of having bad ‘attitudes toward the political energy of ordinary people’, or, accused of promoting ochlocracy or even crowd violence.6 Yet without a proper understanding of populism no meaningful analysis of the relationship between populism and constitutionalism can proceed. The aim of this essay is to provide such an analysis. I shall first put forward a definition of populism as a distinctly discursive phenomenon (or, put differently: an ideology). In particular, I shall argue that populists are not just anti-elitists; they are also necessarily anti-pluralist and therefore advance what I call the core populist claim: that they and only they properly represent the authentic people (pace the view that populists are inherently against the principle of political representation). This definitional work is followed by a number of arguments about how populism can play out in practice as a distinct style of governance and as the imperative to build particular kinds of institutions (pace the view that populism is inherently anti-institutional). I shall then argue that populists might indeed write constitutions, but that such constitutions tend to violate certain core ideas of a normative understanding of constitutionalism (as well as 5 Witness for instance Elizabeth Beaumont writing ‘I take the liberty of suing the terms civic and popular loosely and interchangeably as laymen’s terms meaning largely ordinary people, citizens, or nonofficials’ in The Civic Constitution: Civic Visions and Struggles in the Path toward Constitutional Democracy (New York: Oxford UP, 20114), 4. Or see Tom Donnelly claiming that for all their differences, advocates of popular constitutionalism share a ‘populist sensibility’ – which comes down to nothing more than ‘a common belief that the American people (and their elected representatives) should play an ongoing role in shaping contemporary constitutional meaning.’ Tom Donnelly, ‘Making Popular Constitutionalism Work’, in: Wisconsin Law Review (2012), 159-94; here 161-2. 6 Richard D. Parker, ‘”Here the People Rule”: A Constitutional Populist Manifesto’, in: Valparaiso University Law Review, vol. 27 (1993), 531-84; here 532. 3 democracy). My particular (brief) examples will be the Hungarian constitution in force since the beginning of 2012 and the three most important instances of recent populist constitutionalism in Latin America (Venezuela, Ecuador, and Bolivia). I shall then try to distinguish a deeply problematic populist constitutionalism from a legitimate form of popular constitutionalism, before concluding that populist constitutionalism is un-democratic as such. I should stress that my conclusion does not, I hope, depend on a highly particular notion of constitutionalism (or a highly particular democratic theory, for that matter). This conclusion will not yield absolutely clear-cut criteria of what should and should not be called a ‘populist constitution’. In practice, the lines can be very blurry, and it will take political judgement to decide whether a number of political actors and their constitution-making project should be seen as populist. What is Populism? Even a cursory glance at contemporary political commentary on populism reveals widely divergent understandings of what populism might be. At least in Europe, populism is today generally associated with ‘irresponsible policies’ or some form of ‘political pandering’ (sometimes demagoguery and populism are used interchangeably). However, populism is also frequently identified with a particular class, especially the petty bourgeoisie and, until peasants disappeared from the European political imagination (ca. 1979), those engaged in cultivating the 4 land. This can seem like a sociologically robust theory (classes are constructs, of course, but they can be empirically specified in fairly plausible ways).7 This class diagnosis often comes with a much more speculative account of social psychology: those espousing populist claims publicly and, in particular, those casting their ballot for populist parties, are said to be driven by ‘anxiety’ or ‘fears’ (of modernization, globalization, etc.) or – the feeling most frequently invoked in talking about populists – ‘resentment’.8 None of these seemingly straightforward criteria is helpful for clearly identifying populism. The focus on particular socio-economic groups is empirically dubious, as has been shown in a number of studies9; less obviously, it often results from a largely discredited set of assumptions from modernization theory. The concentration on political psychology is not necessarily misguided, but it is hard to see that certain emotions could only be found among populist politicians and their followers; and, once more, some of the psychological approaches are intimately tied to modernization theory (after all, people are said to experience resentment in reaction to modernization and then long to retain or return to a ‘pre-modern’ world).10 7 Such a focus on class does not have to anti-populist, so to speak. It can link with a progressive historical account of populism and become part of a prescriptive political theory. See as an example John P. McCormick, Machiavellian Democracy (New York: Cambridge UP, 2011). 8 The very notion of resentment tends to import a legacy of cultural pessimism and questionable assumptions about mass psychology into contemporary public discourse. Elites, Nietzsche argued, are almost by definition not resentful. 9 See for instance Karin Priester, Rechter und linker Populismus: Annäherung an ein Chamäleon (Frankfurt/Main: Campus, 2012). 10 For an interesting attempt to go beyond simplistic diagnoses of resentment in the case of the American Tea Party, see Lisa Disch, ‘The Tea Party: A “White Citizenship Movement’?”, in: Lawrence Rosenthal and Christine Trost (eds.),

Load more